9911796707
TMI Blog2024 (8) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... specify the source of income i.e. the person who has made these payments to the Appellant i.e. demand stands made without specifying the service recipient. The definition of Taxable service itself contemplates that service should be provided to an identified client and consideration should have been received from the said client or on his behalf. In the absence of such an identification at any stage of proceeding the demand made under this category cannot be upheld. Reliance placed in the case of M/S. THE MADHYA PRADESH STATE MINING, CORPORATION LIMITED VERSUS PR. COMMISSIONER, CGST CENTRAL EXCISE, BHOPAL (M.P.) [ 2023 (4) TMI 1075 - CESTAT NEW DELHI] where it was held that ' There is no mention of any service which would be performed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the Purchaser of Maruti vehicles either on behalf of Maruti or on their own-shelf. They are registered under the category of Authorized Service Station . 2.2 During the course of audit of the Appellant for the period from 2007-08 to March 2012 it was observed that the Appellant have received certain amounts under the category of Miscellaneous Income and they have not paid any service tax in respect of such receipts. Auditors were of the view that these receipts are in relation to Business Auxiliary Service provided by the Appellant and hence are liable to service tax. 2.3 A Show Cause Notice SCN dated 17.04.2013 was issued to the Appellant referring to the audit objection and asking the Appellant to show cause as to why:- (i) Service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable service for business auxiliary service was defined as under:- Taxable service means any service provided or to be provided to a client. by any person in relation to business auxiliary service The definition itself contemplates that service should be provided to an identified client and consideration should have been received from the said client or on his behalf. In the absence of such an identification at any stage of proceeding the demand made under this category cannot be upheld. 4.3 Similarly after w.e.f. 01.07.2017 service have been defined as 65B(44) of the Finance Act as under:- (44) Service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include .. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been examined and concluded by the lower authority. No service tax liability can be fastened on unidentified service for unidentified service recipient. There is no provision for such summary assumption even under Section 72 of the Finance Act, 1994. Admittedly, the said section provides for arriving at the taxable value to be based of the Assessing Officer's best judgment in case where the appellant fails to furnish return under Section 70 or fails to assess the tax in accordance with Finance Act, 1994. In the present case the appellants did file returns under Section 70 and also made available all the contracts on which service tax liability will arise for them. As such, we find application of Section 72 cannot be extended based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to M/s.Bonprix, Germany. M/s.JPS Trading conducts quality test for export of the garments through their agent (Fashion Force, Tiruppur) situated in India. It is thus assumed by the department that the deductions made in the invoice price is towards commission and towards furtherance of business of the appellant rendered by M/s.JPS Trading, Dubai to the appellant and also for the quality test done through M/s.Fashion Force, situated in India. It requires to be stated that the SCN is not clear as to who is the service recipient and who is the service provider. So also, it does not bring out clear picture of the consideration that is passed from the service provider to the service recipient. It is brought out from evidence that garments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous income. These include loading/unloading charges, Pollution Check-up charges, penalty-cum processing charges etc. It is obvious that these amounts have been received not towards provision of any service on behalf of MUL or anybody else. Consequently, there is no justification for levying Service Tax under BAS. 4.5 In view of the above discussion we do not find any merits in the impugned order though in both the order the Commissioner (Appeals) very strenuously tried to establish that these services are finally going to benefit Maruti Udyog Ltd. We do not find any merit in the same arguments. In the absence of any such agreement to provide specific service between the appellant and Maruti Udyog Limited we do not find any merits in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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